Wash. Rev. Code » Title 71 · Chapter 71.09
Revised Code of Washington

Wash. Rev. Code § 71.09.040 (2026)

✓ current as of May 2026
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(1) Upon the filing of a petition under RCW 71.09.030, the judge shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If such determination is made the judge shall direct that the person be taken into custody and notify the office of public defense of the potential need for representation.
(2) Within seventy-two hours after a person is taken into custody pursuant to subsection (1) of this section, the court shall provide the person with notice of, and an opportunity to appear in person at, a hearing to contest probable cause as to whether the person is a sexually violent predator. In order to assist the person at the hearing, within twenty-four hours of service of the petition, the prosecuting agency shall provide to the person or his or her counsel a copy of all materials provided to the prosecuting agency by the referring agency pursuant to RCW 71.09.025, or obtained by the prosecuting agency pursuant to RCW 71.09.025(1) (c) and (d). At this hearing, the court shall (a) verify the person's identity, and (b) determine whether probable cause exists to believe that the person is a sexually violent predator. At the probable cause hearing, the state may rely upon the petition and certification for determination of probable cause filed pursuant to RCW 71.09.030. The state may supplement this with additional documentary evidence or live testimony. The person may be held in total confinement at the county jail until the trial court renders a decision after the conclusion of the seventy-two hour probable cause hearing. The county shall be entitled to reimbursement for the cost of housing and transporting the person pursuant to rules adopted by the secretary.
(3) At the probable cause hearing, the person shall have the following rights in addition to the rights previously specified: (a) To be represented by counsel , and if the person is indigent as defined in RCW 10.101.010, to have office of public defense contracted counsel appointed as provided in RCW 10.101.020; (b) to present evidence on his or her behalf; (c) to cross-examine witnesses who testify against him or her; (d) to view and copy all petitions and reports in the court file. The court must permit a witness called by either party to testify by telephone. Because this is a special proceeding, discovery pursuant to the civil rules shall not occur until after the hearing has been held and the court has issued its decision.
(4) If the probable cause determination is made, the judge shall direct that the person be transferred to the custody of the department of social and health services for placement in a total confinement facility operated by the department. In no event shall the person be released from confinement prior to trial.
[ 2012 c 257 s 4; 2009 c 409 s 4; 2001 c 286 s 6; 1995 c 216 s 4; 1990 c 3 s 1004.]

Notes:

Effective date—2012 c 257: See note following RCW 2.70.020.
Application—Effective date—2009 c 409: See notes following RCW 71.09.020.
Recommendations—Application—Effective date—2001 c 286: See notes following RCW 71.09.015.
Notes of Decisions
Cited in 101 cases (7 in the last 5 years), 1993–2024 · leading case: In re the Det. of Williams, 147 Wash. 2d 476 (Wash. 2002).
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In re the Det. of Williams, 147 Wash. 2d 476 (Wash. 2002). · cites it 15× “After a 72-hour probable cause hearing conducted on February 9, 1999, the trial court ordered Williams “remanded to the custody of the Department of Social and Health Services at the Special Commitment Center in Steilacoom for an evaluation as described in RCW 71.09.040.” CP at…”
In Re Det. of Williams, 55 P.3d 597 (Wash. 2002). · cites it 15× “After a 72-hour probable cause hearing conducted on February 9, 1999, the trial court ordered Williams "remanded to the custody of the Department of Social and Health Services at the Special Commitment Center in Steilacoom for an evaluation as described in RCW 71.09.040." CP at…”
In Re Det. of Hawkins, 238 P.3d 1175 (Wash. 2010). · cites it 34× “RCW 71.09.040(1)-(3) provide for a hearing to establish that there is probable cause to believe that a person is an SVP.”
In re the Det. of Hawkins, 169 Wash. 2d 796 (Wash. 2010). · cites it 33× “” RCW 71.09.040(4). As part of that evaluation, the State sought, and the trial court ordered, a polygraph examination of Hawkins about his sexual history.”
In re the Det. of Capello, 60 P.3d 620 (Wash. Ct. App. 2002). · cites it 28× “RCW 71.09.040, on the other hand, provides for mental evaluations only after a person is committed as a sexually violent predator.”
In re the Det. of Strand, 167 Wash. 2d 180 (Wash. 2009). · cites it 13× “025(l)(b)(v) must authorize the agency to perform an evaluation.”
In Re Det. of Strand, 217 P.3d 1159 (Wash. 2009). · cites it 13× “025(1)(b)(v) would be superfluous if it merely specified another existing record that shall be provided. Therefore, RCW 71.”
In re the Det. of Kistenmacher, 178 P.3d 949 (Wash. 2008). · cites it 10× “050(1) states: Within forty-five days after the completion of any hearing held pursuant to RCW 71.09.040, the court shall conduct a trial to determine whether the person is a sexually violent predator.”
Det. of Marshall v. State, 125 P.3d 111 (Wash. 2005). · cites it 5× “¶ 6 The trial court found that there was probable cause to believe that Marshall was a sexually violent predator and ordered him detained for an evaluation pursuant to RCW 71.09.040(4) before his commitment trial.”
In re the Det. of Brooks, 145 Wash. 2d 275 (Wash. 2001). · cites it 4× “First, he argues that RCW 71.09.040 and .050 allow for a period of 45 days between the probable cause hearing and the commitment trial, during which time a qualified professional shall examine the person in order to evaluate whether the person is an SVP.”
In re the Det. of Kistenmacher, 134 Wash. App. 72 (Wash. Ct. App. 2006). · cites it 15× “050 states in part: (1) Within forty-five days after the completion of any hearing held pursuant to RCW 71.09.040, the court shall conduct a trial to determine whether the person is a sexually violent predator.”
Capello v. State, 60 P.3d 620 (Wash. Ct. App. 2002). · cites it 30× “RCW 71.09.040, on the other hand, only provides for mental evaluations after a person is committed as a sexually violent predator.”
Show all 101 citing cases →
— Wash. Rev. Code § 71.09.040(1) — 31 cases
In re the Det. of Capello, 60 P.3d 620 (Wash. Ct. App. 2002). “RCW 71.09.040, on the other hand, provides for mental evaluations only after a person is committed as a sexually violent predator.”
In re the Det. of Williams, 147 Wash. 2d 476 (Wash. 2002). “After a 72-hour probable cause hearing conducted on February 9, 1999, the trial court ordered Williams “remanded to the custody of the Department of Social and Health Services at the Special Commitment Center in Steilacoom for an evaluation as described in RCW 71.09.040.” CP at…”
In Re Det. of Williams, 55 P.3d 597 (Wash. 2002). “After a 72-hour probable cause hearing conducted on February 9, 1999, the trial court ordered Williams "remanded to the custody of the Department of Social and Health Services at the Special Commitment Center in Steilacoom for an evaluation as described in RCW 71.09.040." CP at…”
State v. Stout, 159 Wash. 2d 357 (Wash. 2007).
In Re Det. of Stout, 150 P.3d 86 (Wash. 2007).
— Wash. Rev. Code § 71.09.040(2) — 20 cases
In re the Det. of Capello, 60 P.3d 620 (Wash. Ct. App. 2002). “RCW 71.09.040, on the other hand, provides for mental evaluations only after a person is committed as a sexually violent predator.”
In re the Det. of Strand, 167 Wash. 2d 180 (Wash. 2009). “025(l)(b)(v) must authorize the agency to perform an evaluation.”
Capello v. State, 60 P.3d 620 (Wash. Ct. App. 2002). “RCW 71.09.040, on the other hand, only provides for mental evaluations after a person is committed as a sexually violent predator.”
In Re Det. of Strand, 217 P.3d 1159 (Wash. 2009). “025(1)(b)(v) would be superfluous if it merely specified another existing record that shall be provided. Therefore, RCW 71.”
In re the Det. of Williams, 147 Wash. 2d 476 (Wash. 2002). “After a 72-hour probable cause hearing conducted on February 9, 1999, the trial court ordered Williams “remanded to the custody of the Department of Social and Health Services at the Special Commitment Center in Steilacoom for an evaluation as described in RCW 71.09.040.” CP at…”
— Wash. Rev. Code § 71.09.040(3) — 11 cases
State v. Stout, 159 Wash. 2d 357 (Wash. 2007).
In Re Det. of Stout, 150 P.3d 86 (Wash. 2007).
In re the Det. of Kistenmacher, 178 P.3d 949 (Wash. 2008). “050(1) states: Within forty-five days after the completion of any hearing held pursuant to RCW 71.09.040, the court shall conduct a trial to determine whether the person is a sexually violent predator.”
In re the Det. of Morgan, 330 P.3d 774 (Wash. 2014).
In re the Det. of Strand, 167 Wash. 2d 180 (Wash. 2009). “025(l)(b)(v) must authorize the agency to perform an evaluation.”
— Wash. Rev. Code § 71.09.040(3)(c) — 1 case
In Re The Det. Of: Damion Blevins (Wash. Ct. App. 2021).
— Wash. Rev. Code § 71.09.040(4) — 50 cases
In Re Det. of Hawkins, 238 P.3d 1175 (Wash. 2010). “RCW 71.09.040(1)-(3) provide for a hearing to establish that there is probable cause to believe that a person is an SVP.”
In re the Det. of Hawkins, 169 Wash. 2d 796 (Wash. 2010). “” RCW 71.09.040(4). As part of that evaluation, the State sought, and the trial court ordered, a polygraph examination of Hawkins about his sexual history.”
In re the Det. of Williams, 147 Wash. 2d 476 (Wash. 2002). “After a 72-hour probable cause hearing conducted on February 9, 1999, the trial court ordered Williams “remanded to the custody of the Department of Social and Health Services at the Special Commitment Center in Steilacoom for an evaluation as described in RCW 71.09.040.” CP at…”
In Re Det. of Williams, 55 P.3d 597 (Wash. 2002). “After a 72-hour probable cause hearing conducted on February 9, 1999, the trial court ordered Williams "remanded to the custody of the Department of Social and Health Services at the Special Commitment Center in Steilacoom for an evaluation as described in RCW 71.09.040." CP at…”
Det. of Marshall v. State, 125 P.3d 111 (Wash. 2005). “¶ 6 The trial court found that there was probable cause to believe that Marshall was a sexually violent predator and ordered him detained for an evaluation pursuant to RCW 71.09.040(4) before his commitment trial.”
— Wash. Rev. Code § 71.09.040(4)(1995) — 1 case
In Re Det. of Williams, 55 P.3d 597 (Wash. 2002). “After a 72-hour probable cause hearing conducted on February 9, 1999, the trial court ordered Williams "remanded to the custody of the Department of Social and Health Services at the Special Commitment Center in Steilacoom for an evaluation as described in RCW 71.09.040." CP at…”
— Wash. Rev. Code § 71.09.040(l) — 2 cases
In re the Det. of Kistenmacher, 178 P.3d 949 (Wash. 2008). “050(1) states: Within forty-five days after the completion of any hearing held pursuant to RCW 71.09.040, the court shall conduct a trial to determine whether the person is a sexually violent predator.”
In re the Det. of Hawkins, 169 Wash. 2d 796 (Wash. 2010). “” RCW 71.09.040(4). As part of that evaluation, the State sought, and the trial court ordered, a polygraph examination of Hawkins about his sexual history.”
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